Lord Chief Justice.--I shall not give any opinion at present,
because this case, which is of the utmost consequence
to the public, is to be argued again; I shall only just mention
a matter which has slipped the sagacity of the counsel
on both sides, that it may be taken notice of upon the next
argument. Suppose a warrant which is against law be
granted, such as no justice of peace, or other magistrate
high or low whomsoever, has power to issue, whether that
magistrate or justice who grants such warrant, or the officer
who executes it, are within the stat. 24 Geo. 2, c. 44?
To put one case (among an hundred that might happen);
suppose a justice of peace issues a warrant to search a
house for stolen goods, and directs it to four of his servants,
who search and find no stolen goods, but seize all
the books and papers of the owners of the house, whether
in such a case would the justice of peace, his officers or
servants, be within the Stat. 24 Geo. 2? I desire that every
point of this case may be argued to the bottom; for I shall
think myself bound, when I come to give judgment, to
give my opinion upon every point in the case.

. . . . .

Curia.--The defendants make two defences; first, that
they are within the stat. 24 Geo. 2, c. 44; 2dly, that such
warrants have frequently been granted by Secretaries of
State ever since the Revolution, and have never been controverted,
and that they are legal; upon both which defences
the defendants rely.

A Secretary of State, who is a Privy Counsellor, if he be
a conservator of the peace, whatever power he has to commit
is by the common law: if he be considered only as a
Privy Counsellor, he is the only one at the board who has
exercised this authority of late years; if as a conservator,
he never binds to the peace; no other conservator ever did
that we can find: he has no power to administer an oath,
or take bail; but yet it must be admitted that he is in the
full exercise of this power to commit, for treason and seditious
libels against the Government, whatever was the
original source of that power; as appears from the cases of
The Queen and Derby, The King and Earbury, and Kendale
and Roe's case.

We must know what a Secretary of State is, before we
can tell whether he is within the stat. 24 Geo. 2, c. 44. He
is the keeper of the King's signet wherewith the King's private
letters are signed. 2 Inst. 556. Coke upon Articuli Super
Chartas, 28 Ed. 1. Lord Coke's silence is a strong presumption
that no such power as he now exercises was in
him at that time; formerly he was not a Privy Counsellor,
or considered as a magistrate; he began to be significant
about the time of the Revolution, and grew great when the
princes of Europe sent ambassadors hither; it seems inconsistent
that a Secretary of State should have power to commit,
and no power to administer an oath, or take bail; who
can commit and not have power to examine? the House of
Commons indeed commit without oath, but that is nothing
to the present case; there is no account in our law-books
of Secretaries of State, except in the few cases mentioned;
he is not to be found among the old conservators; in Lambert,
Crompton, Fitzherbert, &c. &c. nor is a Privy Counsellor
to be found among our old books till Kendall and
Roe's case, and 1 Leon. 70, 71, 29 Eliz. is the first case that
takes notice of a commitment by a Secretary of State; but
in 2 Leon. 175 the Judges knew no such committing magistrate
as the Secretary of State. It appears by the Petitition
of Right, that the King and Council claimed a power to
commit; if the Secretary of State had claimed any such
power, then certainly the Petition of Right would have
taken notice of it; but from its silence on that head we may
fairly conclude he neither claimed nor had any such
power; the Stat. 16 Car. 1, for Regulating the Privy Council,
and taking away the Court of Star-Chamber, binds the
King not to commit, and in such case gives a habeas corpus;
it is strange that House of Commons should take no
notice of the Secretary of State, if he then had claimed
power to commit. This power of a Secretary of State to
commit was derivative from the commitment per mandatum
Regis: Ephemeris Parliamentaria. Coke says in his
speech to the House, "If I do my duty to the King, I must
commit without shewing the cause;" 1 Leon. 70, 71, shews
that a commitment by a single Privy Counsellor was not
warranted. By the Licensing Statute of 13 & 14 Car. 2,
cap. 33, sec. 15, licence is given to a messenger under a
warrant of the Secretary of State to search for books unlicensed,
and if they find any against the religion of the
Church of England, to bring them before the Secretary of
State; the warrant in that case expressed that it was by the
King's command. See Stamford's comment on the mandate
of the King, and Lambert, cap. Bailment. All the
Judges temp. Eliz. held that in a warrant or commitment
by one Privy Counsellor he must shew it was by the mandate
of the King in Council. See And. 297, the opinion of
all the Judges; they remonstrated to the King that no subject
ought to be committed by a Privy Counsellor against
the law of the realm. Before the 3 Car. 1 all the Privy
Counsellors exercised this power to commit; from that
aera they disused this power, but then they prescribed still
to commit per mandatum Regis. Journal of the House of
Commons 195. 16 Car. 1. Coke, Selden, &c. argued that
the King's power to commit, meant that he had such
power by his Courts of Justice. In the case of The Seven
Bishops all the Court and King's Council admit, that supposing
the warrant had been signed out of the Council,
that it would have been bad, but the Court presumed it to
be signed at the board; Pollexfen in his argument says, we
do not deny but the Council board have power to commit,
but not out of Council; this is a very strong authority; the
whole body of the law seem not to know that Privy Counsellors
out of Council had any power to commit, if there
had been any such power they could not have been ignorant
of it; and this power was only in cases of high treason,
they never claimed it in any other case. It was argued that
if a Secretary of State hath power to commit in high treason,
he hath it in cases of lessor crimes: but this we deny,
for if it appears that he hath power to commit in one case
only, how can we then without authority say he has that
power in other cases? he is not a conservator of the peace;
Justice Rokeby only says he is in the nature of a conservator
of the peace: we are now bound by the cases of The
Queen and Derby, and The King and Earbury.

The Secretary of State is no conservator nor a justice of
the peace, quasi secretary, within the words or equity of
the Stat. 24 Geo. 2, admitting him (for arguments sake) to
be a conservator, the preamble of the statute shews why it
was made, and for what purpose; the only grantor of a
warrant therein mentioned, is a justice of the peace; justice
of peace and conservator are not convertible terms; the
cases of construction upon old statutes, in regard to the
warden of the Fleet, the Bishop of Norwich, &c. are not to
be applied to cases upon modern statutes. The best way to
construe modern statutes is to follow the words thereof;
let us compare a justice of peace and a conservator; the
justice is liable to actions, as the statute takes notice, it is
applicable to him who acts by warrant directed to constables;
a conservator is not intrusted with the execution
of laws, which by this Act is meant statutes, which gives
justices jurisdiction; a conservator is not liable to actions;
he never acts: he is almost forgotten; there never was an
action against a conservator of the peace as such; he is
antiquated, and could never be thought of when this Act
was made; and ad ea quae frequenter accidunt jura adaptantur.
There is no act of a constable or tithingman as conservator
taken notice of in the statute; will the Secretary of
State be ranked with the highest or lowest of these conservators?
the Statute of Jac. 1, for officers acting by authority
to plead the general issue, and give the special matter in
evidence, when considered with this Statute of 24 Geo. 2,
the latter seems to be a second part of the Act of Jac. 1,
and we are all clearly of opinion that neither the Secretary
of State, nor the messengers, are within the Stat. 24 Geo.
2, but if the messengers had been within it, as they did not
take a constable with them according to the warrant, that
alone would have been fatal to them, nor did they pursue
the warrant in the execution thereof, when they carried
the plaintiff and his books, &c. before Lovel Stanhope,
and not before Lord Halifax; that was wrong, because a
Secretary of State cannot delegate his power, but ought to
act in this part of his office personally.

The defendants having failed in their defence under the
Statute 24 Geo. 2; we shall now consider the special justification,
whether it can be supported in law, and this depends
upon the jurisdiction of the Secretary of State; for
if he has no jurisdiction to grant a warrant to break open
doors, locks, boxes, and to seize a man and all his books,
&c. in the first instance upon an information of his being
guilty of publishing a libel, the warrant will not justify the
defendants: it was resolved by B. R. in the case of Shergold
v. Holloway, that a justice's warrant expressly to arrest the
party will not justify the officer, there being no jurisdiction.
2 Stran. 1002. The warrant in our case was an execution
in the first instance, without any previous summons,
examination, hearing the plaintiff, or proof that he was
the author of the supposed libels; a power claimed by no
other magistrate whatever (Scroggs C.J. always excepted);
it was left to the discretion of these defendants to execute
the warrant in the absence or presence of the plaintiff,
when he might have no witness present to see what they
did; for they were to seize all papers, bank bills, or any
other valuable papers they might take away if they were so
disposed; there might be nobody to detect them. If this be
lawful, both Houses of Parliament are involved in it, for
they have both ruled, that privilege doth not extend to this
case. In the case of Wilkes, a member of the Commons
House, all his books and papers were seized and taken
away; we were told by one of these messengers that he was
obliged by his oath to sweep away all papers whatsoever;
if this is law it would be found in our books, but no such
law ever existed in this country; our law holds the property
of every man so sacred, that no man can set his foot
upon his neighbour's close without his leave; if he does he
is a trespasser, though he does no damage at all; if he will
tread upon his neighbour's ground, he must justify it by
law. The defendants have no right to avail themselves of
the usage of these warrants since the Revolution, and if
that would have justified them they have not averred it in
their plea, so it could not be put, nor was in issue at the
trial; we can safely say there is no law in this country to
justify the defendants in what they have done; if there
was, it would destroy all the comforts of society; for papers
are often the dearest property a man can have. This case
was compared to that of stolen goods; Lord Coke denied
the lawfulness of granting warrants to search for stolen
goods, 4 Inst. 176, 177, though now it prevails to be law;
but in that case the justice and the informer must proceed
with great caution; there must be an oath that the party
has had his goods stolen, and his strong reason to believe
they are concealed in such a place; but if the goods are not
found there, he is a trespasser; the officer in that case is a
witness; there are none in this case, no inventory taken; if
it had been legal many guards of property would have attended
it. We shall now consider the usage of these warrants
since the Revolution; if it began then, it is too modern
to be law; the common law did not begin with the
Revolution; the ancient constitution which had been almost
overthrown and destroyed, was then repaired and
revived; the Revolution added a new buttress to the ancient
venerable edifice: the K. B. lately said that no objection
had ever been taken to general warrants, they have
passed sub silentio: this is the first instance of an attempt
to prove a modern practice of a private office to make and
execute warrants to enter a man's house, search for and
take away all his books and papers in the first instance, to
be law, which is not to be found in our books. It must have
been the guilt or poverty of those upon whom such warrants
have been executed, that deterred or hindered them
from contending against the power of a Secretary of State
and the Solicitor of the Treasury, or such warrants could
never have passed for lawful till this time. We are inclined
to think the present warrant took its first rise from the
Licensing Act, 13 & 14 Car. 2, c. 33, and are all of opinion
that it cannot be justified by law, notwithstanding the resolution
of the Judges in the time of Cha. 2, and Jac. 2,
that such search warrants are lawful. State Trials, vol. 3,
58, the trial of Carr for a libel. There is no authority but
of the Judges of that time that a house may be searched
for a libel, but the twelve Judges cannot make law; and if
a man is punishable for having a libel in his private custody,
as many cases say he is, half the kingdom would be
guilty in the case of a favourable libel, if libels may be
searched for and seized by whomsoever and wheresoever
the Secretary of State thinks fit. It is said it is better for
the Government and the public to seize the libel before it
is published; if the Legislature be of that opinion they will
make it lawful. Sir Samuel Astry was committed to the
Tower, for asserting there was a law of State distinct from
the common law. The law never forces evidence from the
party in whose power it is; when an adversary has got your
deeds, there is no lawful way of getting them again but by
an action. 2 Stran. 1210, The King and Cornelius. The King
and Dr. Purnell, Hil. 22 Geo. B. R. Our law is wise and
merciful, and supposes every man accused to be innocent
before he is tried by his peers: upon the whole, we are all
of opinion that this warrant is wholly illegal and void. One
word more for ourselves; we are no advocates for libels,
all Governments must set their faces against them, and
whenever they come before us and a jury we shall set our
faces against them; and if juries do not prevent them they
may prove fatal to liberty, destroy Government and introduce
anarchy; but tyranny is better than anarchy, and the
worst Government better than none at all.